Galic v Engelina Maria Sellin as executrix of the estate of Milan Glavota

[2025] WASCA 1

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   GALIC -v- ENGELINA MARIA SELLIN as executrix of the estate of MILAN GLAVOTA [2025] WASCA 1

CORAM:   BUSS P

MITCHELL JA

VAUGHAN JA

HEARD:   4 DECEMBER 2024

DELIVERED          :   16 JANUARY 2025

FILE NO/S:   CACV 75 of 2022

BETWEEN:   TIHOMIR GALIC

Appellant

AND

ENGELINA MARIA SELLIN as executrix of the estate of MILAN GLAVOTA

First Respondent

IVA ALERIC

Second Respondent

MICHELE ANN KERSHAW as administrator of the estate of ADAM ALERIC, DECEASED

Third Respondent

JEREMY MARK GLAVOTA as executor of the estate of VLADIMIR GLAVOTA, DECEASED

Fourth Respondent

SLAVO GLAVOTA

Fifth Respondent

DANKO GLAVOTA

Sixth Respondent

DENISE KAYE BOUCKAERT as executor of the estate of DANICA FODOR, DECEASED

SUSAN ANN MILES as executor of the estate of DANICA FODOR, DECEASED

Seventh Respondents

MARKO ALERIC

Eighth Respondent

LUKA ALERIC

Ninth Respondent

VERICA ALERIC

Tenth Respondent

RUZA ALERIC

Eleventh Respondent

ENGELINA MARIA SELLIN

Twelfth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   CURTHOYS J

Citation: ENGELINA MARIA SELLIN as executrix of the estate of MILAN GLAVOTA -v- GALIC [2022] WASC 249

File Number            :   CIV 2035 of 2017

Catchwords:

Wills - Construction - Whether beneficial interest in property devised subject to a condition precedent requiring payment to third parties, or as a condition subsequent imposing an equitable duty to perform the condition which is secured by an equitable charge over the property beneficially and absolutely or on trust - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed
Cross-appeal allowed
Orders varied

Category:    B

Representation:

Counsel:

Appellant	:	M D Cuerden SC
First Respondent	:	No appearance
Second Respondent	:	P E Cahill SC
Third Respondent	:	P E Cahill SC
Fourth Respondent	:	P E Cahill SC
Fifth Respondent	:	P E Cahill SC
Sixth Respondent	:	P E Cahill SC
Seventh Respondents	:	P E Cahill SC
Eighth Respondent	:	P E Cahill SC
Ninth Respondent	:	P E Cahill SC
Tenth Respondent	:	No appearance
Eleventh Respondent	:	P E Cahill SC
Twelfth Respondent	:	No appearance

Solicitors:

Appellant	:	Popperwell & Co
First Respondent	:	Jackson McDonald
Second Respondent	:	Frichot Lawyers
Third Respondent	:	Frichot Lawyers
Fourth Respondent	:	Frichot Lawyers
Fifth Respondent	:	Frichot Lawyers
Sixth Respondent	:	Frichot Lawyers
Seventh Respondents	:	Frichot Lawyers
Eighth Respondent	:	Frichot Lawyers
Ninth Respondent	:	Frichot Lawyers
Tenth Respondent	:	No appearance
Eleventh Respondent	:	Frichot Lawyers
Twelfth Respondent	:	Greenstone Legal

Case(s) referred to in decision(s):

Fell v Fell (1922) 31 CLR 268

In re Aspinall [1936] SASR 468

Ritchie v Magree (1964) 114 CLR 173

The Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417

Walsh v Sloan [2019] WASCA 107

JUDGMENT OF THE COURT:

Introduction

1. This appeal concerns the proper construction of the will of the late Lucija Glavota dated 30 June 2006 (Will) relating to a devise of real estate at 51 Orange Avenue, Upper Swan (Property). 

2. In broad terms, cl 2(i) of the Will gave the Property to Lucija's nephew, Milan Glavota, 'absolutely'.[1]  Clause 2(ii) stated, in effect, that this gift was on the condition that Milan pay specified amounts to the second to eleventh respondents (beneficiary respondents), who were other relatives of Lucija.  Clause 3 of the Will directed that Milan had five years from the date of Lucija's death to make those payments to the beneficiary respondents.  Clause 6 of the Will provided for the sale of the Property and the distribution of the proceeds among Milan and the beneficiary respondents after the five-year period, should Milan not have made such payments.

   [1] Because of their common surnames, which is shared with many of the respondents, we will generally refer to Lucija Glavota and Milan Glavota by their first names only, without intending any disrespect.

3. Lucija died on 20 July 2006.  Milan did not make the payments to the beneficiary respondents provided for in cl 2(ii) of the Will prior to his own death on 17 February 2013.

4. The first respondent was Milan's partner and is the executrix of his estate.  In the primary proceedings, the first respondent brought an action against the appellant, who is a legal practitioner who was engaged by Milan.  The first respondent alleges that the appellant failed to properly advise Milan as to the proper construction of the Will and the steps Milan ought to have taken to ensure that he obtained the gift of the Property under the Will.  The beneficiary respondents were joined to the primary proceedings as interested parties.  In the primary proceedings, the respondents contended, in broad terms, that the gift of the Property to Milan was conditional.  The appellant contended that the gift of the Property was absolute.

5. On 5 August 2022, the primary judge determined preliminary issues in the primary proceedings by answering four questions.  In effect, the primary judge held that, on the proper construction of the Will, the Property was devised on trust for Milan and the beneficiary respondents, with the gift of the Property to Milan only becoming absolute upon the satisfaction of the condition specified in cl 2(ii) of the Will within the time specified in cl 3 of the Will.

6. The appellant now appeals against the primary orders answering the preliminary questions.  For the following reasons, the appeal must be dismissed.

Background

1. Lucija died testate on 20 July 2006.  By cl 1 of the Will, Milan was appointed to be the executor and trustee of her estate.  The Property was the principal asset of Lucija's estate.[2]

   [2] Engelina Maria Sellin as executrix of the estate of Milan Glavota v Galic [2022] WASC 249 (primary decision) [6].

2. Milan died testate on 17 February 2013.  His will appointed the first respondent as his executor and trustee.  The first respondent is the sole beneficiary of Milan's estate.[3]  The first respondent is therefore the executrix of Milan's estate, and by chain of representation, also the executrix of Lucija's estate.[4]

   [3] Primary decision [7].

   [4] Primary decision [8].

Relevant terms of the Will

1. The Will relevantly provides:[5]

   [5] Green AB 52 - 54.

   2SUBJECT to the prior payments from my estate of all my funeral & testamentary expenses and just debts I DEVISE AND BEQUEATH the whole of my estate whether real or personal of whatsoever description and wheresoever situated from time to time to according to [sic] the following manner -

   My residence

   (i)I GIVE all my house & land (including the old house sitting on my property) to my said nephew MILAN GLAVOTA absolutely.

   (ii)This gift of my said house & land to my nephew is on the condition that he shall pay out the following amounts to the correspondingly named persons -

   I GIVE TWELVE & ONE HALF PER CENT (12.5%) … of the value of my house & land to IVA ALERIC (Wife to my late brother MARKO ALERIC).

   I GIVE TWELVE & ONE HALF PER CENT (12.5%) … of the value of my house & land to my brother DANIJEL ALEREIC [sic].

   I GIVE TWELVE & ONE HALF PER CENT (12.5%) … of the value of my house & land to my brother ADAM ALEREIC [sic].

   I GIVE TWELVE & ONE HALF PER CENT (12.5%) … of the value of my house & land to my brother ANDELKO ALEREIC [sic].

   I GIVE TEN PER CENT (10%) … of the value of my house & land to my late Husband's nephew VLADIMIR GLAVOTA.

   I GIVE TEN PER CENT (10%) … of the value of my house & land to my late Husband's nephew SLAVO GLAVOTA.

   I GIVE TEN PER CENT (10%) … of the value of my house & land to my late Husband's nephew DANCO [sic] GLAVOTA.

   I GIVE TEN PER CENT (10%) … of the value of my house & land to my late Husband's niece DANICA GLAVOTA.

   Money in bank

   (iii) Out of the monies which I have in my Westpac bank account, I make the following payments -

   Firstly, towards the payment of all my funeral and testamentary expenses and just debts

   Secondly, I GIVE the balance of any monies remaining to my said nephew MILAN GLAVOTA absolutely;

   Balance of estate

   (iv)I GIVE the balance of my estate such as the contents of my house and shed and any machinery and livestock I have to my said nephew MILAN GLAVOTA absolutely.

   3I DIRECT that my nephew MILAN shall be given 5 years following my death within which to make such payments referred to above (or within any other time as is mutually agreed to in writing).  Should any of these 9 beneficiaries happen to die before the 5‑year period has expired, then I GIVE that amount with [sic] that person would have received to such of any children of theirs all JOINTLY & EQUALLY.

   4Regarding ascertaining the value of my property as at the date of my death, I DIRECT that my Executor & Trustee shall obtain a sworn valuation over the property and I hereby declare that the valuation amount arrived at shall be the value of my residence for the purposes hereof.

   5Regarding this 5 year period, I have allowed this as MILAN wishes to subdivide the land and sell the blocks but wishes to keep the old house to live in and some land around it.

   6After the 5 year period, should MILAN not have made such payments, then in the absence of any agreement between any of the nine beneficiaries referred to above, the property is then to be placed on the market immediately and I DIVIDE all net proceeds from the sale of my property in the manner set out in Paragraph 2.  Of the remaining TEN PER CENT (10%), I GIVE this MILAN [sic].

   7At all times my estate is to be responsible for all shire and water rates over the property with the exception of water, gas, electricity and telephone charges which shall be the responsibility of MILAN.

   8I DIRECT that the costs associated with the administration of my estate shall be paid out of the monies which MILAN is require[d] to make under this Will before they are distributed.

2. Milan did not, within five years of Lucija's death, sell the Property or make any payments to any of the beneficiary respondents.[6]  In an affidavit sworn on 20 October 2006 for the purposes of obtaining probate, Milan deposed that the value of the Property at the date of Lucija's death was $950,000.[7]  The Property was sold by the first respondent on 21 December 2015 for $7,416,876.02.[8]

   [6] Primary decision [9].

   [7] Primary decision [10].

   [8] Primary decision [11].

Parties' positions in the primary proceedings

1. The first respondent commenced the primary proceedings on 23 June 2017.  The first respondent pleaded that Milan retained the appellant to provide legal advice as to, and to assist him in carrying out, the terms of the Will.[9]  She pleaded that it was a term of the retainer that the appellant would exercise all due professional care, skill and diligence as a solicitor in providing that legal advice and assistance to Milan.[10]  The appellant was alleged to have breached that term of the retainer by failing to advise Milan of the obligation to make the payments specified in cl 2(ii) of the Will and the consequences of failing to make those payments.[11]  The first respondent alleges that, as a result of the appellant's failure to provide that advice, Milan failed to make any of the payments referred to in cl 2(ii) of the Will within five years of Lucija's death, when he would have otherwise done so.[12]  She alleges that Milan therefore lost the opportunity to remain the registered proprietor of the Property, retain it thereafter and sell it at an advantageous date.  Instead, he became obliged as of 19 July 2011 to sell the Property and apply 90% of the net proceeds of sale in accordance with cl 6 of the Will.[13]

   [9] Second further amended statement of claim filed 10 September 2020 (SoC) par 9.

   [10] SoC par 10.

   [11] SoC pars 12, 16.

   [12] SoC par 13.

   [13] SoC par 17.

2. The appellant admitted being retained by Milan for various purposes but denied that he was ever instructed by Milan to provide any advice in respect of the terms of the Will.[14]  He admitted the implied term of the retainer to exercise all due professional care, skill and diligence as a solicitor,[15] but denied any breach of that term.[16]  The appellant says that, even if he did breach any alleged retainer (which he denies), neither Milan nor Milan's estate came under any liability to make the payments detailed in cl 6 of the Will.[17]

   [14] Re-amended defence of the first defendant filed 23 June 2020 (Defence) pars 6 - 17.

   [15] Defence par 18.

   [16] Defence pars 20 - 22.

   [17] Defence par 25.

1. The appellant pleaded that:[18]

   1.On the proper construction of the Will, the Property was devised to Milan beneficially and absolutely, subject only to the existence of personal obligations on Milan to make payment of the amounts referred to in cl 2(ii) of the Will and the existence of any charge over the Property to secure compliance with the obligation to make those payments but not otherwise.

   2.Clause 6 of the Will, according to its terms, provided that after the five-year period, should Milan not have made the payments referred to in cl 2(ii), the Property 'was then to be placed on the market immediately and the executrix purported to divide all net proceeds from the sale of the Property in the manner set out in clause 2 of the Will, and of the remaining 10% she purported to give this to Milan'.

   3.However, cl 6 of the Will is repugnant to or inconsistent with the absolute devise of the Property to Milan, or alternatively is too uncertain to be given effect, and therefore is and was at all material times invalid and void and of no effect.

   [18] Defence par 4.

Trial of preliminary issues

1. On 9 October 2020, orders were made in the primary proceedings for a trial of preliminary issues by way of answering the following four questions:[19]

   [19] Primary decision [16] - [17].

   1.On the proper construction of the Will, was the Property devised:

   (a)to Milan beneficially and absolutely as pleaded [by the appellant]; or

   (b)on trust for Milan and the beneficiaries nominated in clause 2(ii) of the Will with the gift of the Property to Milan only becoming absolute upon the satisfaction of the conditions specified in clause 2(ii) of the Will within the time specified in clause 3 of the Will as pleaded [by the beneficiary respondents]?

   2.If the Property was devised to Milan beneficially and absolutely, is clause 6 of the Will void and of no effect because it is repugnant to, or inconsistent with, the devise of the Property to Milan beneficially and absolutely?

   3.Further or alternatively to Questions 1 and 2, is clause 6 of the Will void and of no effect because it is too uncertain to be given effect?

   4.Alternatively to Questions 2 and 3, on the proper construction of the Will if clause 6 of the Will is valid and the Property is sold pursuant to that clause, are the beneficiaries nominated in clause 2(ii) of the Will entitled to a share of:

   (a)the net proceeds of the sale of the Property; or

   (b)the value of the Property as at 20 July 2011 or as at such date thereafter which was sufficient to allow the Property to have been sold?

2. At trial of the preliminary issues, an answer to question four was not sought.[20]

   [20] Primary decision [18].

3. On 5 August 2022, the primary judge made orders answering the preliminary questions and published written reasons for giving those answers.  The orders answered the preliminary questions as follows:

   1.On the proper construction of the Will, the Property was devised to Milan on trust for the beneficiaries nominated in cl 2(ii) of the Will with the gift of the Property to Milan only becoming absolute upon the satisfaction of the conditions specified in cl 2(ii) of the Will within the time specified in cl 3 of the Will, as pleaded in par 3 of the beneficiary respondents' defence.

   2.Question 2 is not applicable.  The Property was not devised to Milan beneficially and absolutely upon Lucija's death.

   3.Clause 6 is not void for uncertainty.

   4.Unnecessary to answer.

4. Paragraph 3 of the beneficiary respondents' defence, referred to in the above answer to question 1, pleaded that:

   On a proper construction of the Will, the Property was devised to Milan on trust for the beneficiaries nominated in clause 2(ii) of the Will:

   a. unless and until Milan made payments to those beneficiaries in accordance with clause 2(ii) of the Will within 5 years of the date of [Lucija's] death; and

   b. so that, in the event that Milan did not make the payments to those beneficiaries in accordance with clause 2(ii) of the Will within 5 years of the date of [Lucija's] death, the Property was to be sold and the proceeds of the sale shared between those beneficiaries and Milan as provided for in clause 6 of the Will.

5. Because the outcome of this appeal turns on this court's construction of the Will, it is unnecessary to detail the reasoning of the primary judge which led to these answers.  It is also unnecessary to deal with the appellant's criticism of various aspects of the primary judge's approach.

The appeal to this court

1. The appellant now appeals to this court against the orders answering preliminary questions 1 and 2 in the manner described above, on the following two grounds:

   1. The learned judge erred in law in concluding that on a proper construction of the Will the devise of the Property to Milan under cl 2(i) of the Will was a conditional gift devised on trust and in failing to conclude that it was an absolute gift to Milan beneficially.

   2. In the premises, the learned judge erred in law in failing to conclude that cl 6 of the Will is repugnant to or inconsistent with the absolute devise of the Property to Milan by cl 2(i) such that cl 6 is void and Milan took the devise of the Property free of cl 6.

2. It is common ground that cl 6 would be ineffective as repugnant to cl 2(i) if, but only if, cl 2(i) is construed in the manner proposed by the appellant in ground 1.  Ground 1 is therefore the critical ground in the appeal.

Disposition of appeal

1. In Walsh v Sloan,[21] this court made the following observations about the construction of wills:

   The starting point is that the object of construing a [will] is to ascertain the testator's intention as expressed in the [will] itself.  As Lord Simon LC said in Perrin v Morgan [[1943] AC 399, 406]:

   '[T]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended.  The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator.'

   In identifying the meaning of the words used by the testator (ie in construing the words themselves), the Court must focus on the intention of the testator, objectively ascertained, as at the time that the [will] was executed.

   [21] Walsh v Sloan [2019] WASCA 107 [24] - [25].

2. It is trite that the court looks to the language of the whole will to ascertain the objective meaning of the language used considered as a whole.  In doing so, the court should bear in mind Isaacs J's observations made in the course of construing the very poorly drafted will in Fell v Fell:[22]

   [A]s Chief Justice Wilmot quaintly said in Dodson v Grew [(1767) Wilm 272, 278], 'Words are only pictures of ideas upon paper.' So long as we find the ideas delineated on the paper, it matters nothing how crude the craftsmanship may be.

   [22] Fell v Fell (1922) 31 CLR 268, 276.

1. The drafting of the Will in the present case is hardly an exemplar of refined craftsmanship.  However, when the terms of the Will are considered as a whole, the following clear picture of its meaning emerges.

2. The critical question is whether the 'condition' of payment provided for in cl 2(ii) operates:

   1.as a condition precedent to the gift of the Property to Milan which must be satisfied before the Property is given to Milan 'absolutely' under cl 2(i) of the Will; or

   2.as a condition subsequent imposing an equitable duty to perform the condition annexed to the gift, performance of which is secured by an equitable charge over the Property which otherwise immediately vests absolutely in Milan on Lucija's death under cl 2(i) of the Will.

3. The appellant relies on the observation of Dixon J in The Countess of Bective v Federal Commissioner of Taxation, that:[23]

   Whenever a gift is made to one person beneficially, subject to his paying money to another, the provision takes effect as a charge, notwithstanding that words of condition are used, unless an intention clearly appears that it should operate by way of condition.

   [23] The Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417, 419.

4. In the present case, when the Will is considered as a whole, a clear intention does emerge that the gift in cl 2(i) is subject to a condition precedent contained in cl 2(ii) of the Will.  Clause 2(ii) expressly states that the gift of the Property is to be on the condition that Milan shall pay out the specified amounts to the beneficiary respondents.  Treating cl 2(ii) as creating a condition precedent is entirely consistent with the ordinary meaning of the language of the Will.  Further, cl 6 of the Will is a clear statement of an intention that the Property will remain within Lucija's power of gift if the condition in cl 2(ii) is not satisfied within five years of her death.  We accept that, in construing a Will, allowance must be made for the possibility that a testator might act under a mistaken view of his or her powers to make provision dealing with property after it has been given away.[24]  However, where the Will uses language consistent with making a gift subject to satisfaction of a condition precedent, the inclusion of a later provision which is consistent only with such a gift strongly points to a testamentary intention to effect a gift subject to satisfaction of a condition precedent.  

   [24] See, for example, In re Aspinall [1936] SASR 468, 471; Ritchie v Magree (1964) 114 CLR 173, 182 - 183.

5. In our view, cl 2(i) of the Will, read with cl 2(ii), cl 3 and cl 6, effects an absolute gift of the Property to Milan in his personal capacity subject to a condition precedent that the payments specified in cl 2(ii) be made within five years following Lucija's death.  Milan does not acquire beneficial ownership of the Property unless and until those payments are made within five years of the date of Lucija's death.

6. Prior to satisfaction of the condition precedent, the Property remains an asset of the estate and legal title to the Property is held by the executor and trustee of Lucija's estate.  The Property is held by the executor and trustee on trust for Milan and the eight other named beneficiaries or, in the event of their deaths, their children:

   1.to hold the Property for five years after Lucija's death or until such earlier time as the condition precedent is satisfied; and

   2.if the condition precedent is not satisfied within five years of Lucija's death, to immediately sell the Property and deal with the sale proceeds under cl 6 of the Will.

7. Other clauses of the Will also support this construction.  While the executor and trustee holds the Property on trust, the estate is responsible for shire and water rates as provided in cl 7.  This is consistent with the executor and trustee having legal title to the Property.  The Will contemplates that Milan may be permitted to reside in the 'old house' on the Property but, if he does so, Milan is responsible for water, gas, electricity and telephone charges as contemplated by cl 7 of the Will.  These provisions are entirely consistent with the executor and trustee continuing to hold the Property as an asset of the estate prior to satisfaction of the payment condition provided for in cl 2(ii) of the Will.

8. Clause 5 does not authorise Milan to subdivide and sell the Property before satisfaction of the condition precedent.  It is not an operative clause, but an explanation of the reason why Milan has been given five years to satisfy the payment condition provided for in cl 2(ii) of the Will.  Clause 5 refers to what Milan wishes to do rather than what Milan is authorised to do.  It is consistent with an intention to allow time for Milan, in his personal capacity, to investigate subdivision and possibly obtain subdivisional approval at his own expense.  It is unnecessary to determine whether Milan, as executor and trustee, would be authorised to subdivide the Property prior to satisfaction of the condition in cl 2(ii) of the Will. In our view, any such authority must be found in a source other than cl 5 of the Will.  But whatever the position in that respect, there is no authority for Milan, acting in his personal capacity, to sell the Property prior to satisfaction of the condition in cl 2(ii) of the Will.  Clause 5 is not inconsistent with cl 2 of the Will effecting a gift of the Property subject to satisfaction of a condition precedent.

9. The appellant submits that requiring satisfaction of the condition in cl 2(ii) of the Will before Milan could sell the Property would frustrate the gift in a way the testator could not have objectively intended. This is said to be because it would deny Milan the opportunity to raise the funds required to pay the amounts provided for in cl 2(ii) of the Will. We do not accept that submission. On our preferred construction, noted at [27] above, Milan could finance the cost of the payments in a settlement at which there was a simultaneous exchange of:

   1.funds provided by Milan's financier, which are paid to the beneficiary respondents;

   2.an executed transfer of title to the Property from the executor and trustee to Milan in his personal capacity; and

   3.an executed mortgage of the Property by Milan in his personal capacity to the financier.

10. We also do not accept the appellant's submission that cl 8 is inconsistent with cl 2 of the Will effecting a gift subject to a condition precedent.  Clause 8 directs that the costs associated with the administration of Lucija's estate be paid out of the monies Milan is required to distribute to the beneficiary respondents.  The appellant in effect contends that it would be incongruous if the costs of subdividing the land, which is for Milan's personal benefit, were to be borne by the beneficiary respondents.  However, costs incurred by Milan acting in his personal capacity to investigate and possibly obtain subdivisional approval as contemplated by cl 5 would not be costs of the administration of Lucija's estate to which the direction in cl 8 would apply.

11. For the above reasons, the answers given to questions 1 and 2 in the orders made by the primary judge were correct.  While we would grant leave to appeal, in our view the appeal should be dismissed.

Cross-appeal

1. At the hearing of the appeal, it emerged that the beneficiary respondents sought in their notice of contention to vary one of the answers given to the preliminary questions by the primary orders. Senior counsel for the appellant indicated that the appellant did not oppose that variation being made if the appeal was unsuccessful.  The beneficiary respondents were given leave to file a notice of cross‑appeal to regularise the matter.

2. The cross-appeal seeks a variation of the primary judge's answer to question 1 in the following terms:

   On a proper construction of the Will, the Property was devised to held by Milan as trustee on trust for the beneficiaries nominated in cl 2(ii) of the Will and himself as beneficiary with the gift of the Property to Milan only becoming absolute upon the satisfaction of the conditions specified in cl 2(ii) of the Will within the time specified in cl 3 of the Will, as pleaded in paragraph 3 of the Beneficiary Defendants' defence.

3. Given the appellant does not oppose the amendment, we would be prepared to allow the cross-appeal and vary the primary orders along the lines proposed above.  However, in our view two further modifications should be made to reflect the true legal position. 

   1.The first reference to Milan should be to Milan in his capacity as executor of Lucija's estate, rather than in his personal capacity.

   2.The reference to the beneficiaries of the trust should be to Milan and the other beneficiaries identified in cl 2(ii) and cl 6 of the Will.

4. That is, we would vary the answer so that it reads:

   On a proper construction of the Will, the Property was devised to held by Milan in his capacity as executor of Lucija's estate as trustee on trust for the Milan in his personal capacity and the other beneficiaries nominated identified in cl 2(ii) and cl 6 of the Will with the gift of the Property to Milan only becoming absolute upon the satisfaction of the conditions specified in cl 2(ii) of the Will within the time specified in cl 3 of the Will, as pleaded in paragraph 3 of the Beneficiary Defendants' defence.

   We would hear from the parties as to the final formulation of the answer to question 1.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KP

Associate to the Hon Justice Mitchell

16 JANUARY 2025